V.S. Kotwal, J.
1. Affluence, education and culture may be cherished desires of many, though there may be only a handful of persons who are bestowed with this fortune. The plaintiff who no doubt falls in that category has to face quite a bitter criticism on that count as this fortune is sought to be looked upon as her sin. The further characteristic of this proceeding is that an individual is pitted against a Company when the premises are occupied by the employees of the Company though, originally under a leave and licence agreement as also though the furnishing of quarters is not a term of employment. The other side of this coin is apparent that the plaintiff who owns the premises has to rest content by being away from the premises and invite sympathies from her relations for securing at least temporary accommodation.
2. Quite an affluent family consisting of the parents, three daughters and a son resided in a family house 'Anand Bhavan' located in Babulnath area of this metropolitan city. This was claimed to be the family house as being the Joint Hindu Family property which was originally purchased by the plaintiff's grandfather. Those are quite spacious premises. However, there appears to have been either a formal partition or some family arrangement with the result that the plaintiff's father and her two uncles got the share therein with the further result that after the death of her father in the year 1965, that share has been devolved on the other members of the family including the plaintiff though it is claimed that the plaintiff's share is extremely marginal. It is not necessary to have a computation of the respective shares of the parties and the Court below has unduly magnified that aspect indulging in the process of mathematical calculations.
3. The plaintiff purchased the suit flat in the year 1963, though she was residing in Anand Bhavan. The suit flat is located on the 9th floor in Meher Apartments at Anstey Road, Cumbala Hills, Bombay. For some time the plaintiff went abroad to pursue her higher studies. It is on July 6, 1970, that the defendant Company was inducted in the suit premises purely on temporary basis under a leave and licence agreement when the amount of licence fee or compensation was fixed at Rs. 850/- per month with an additional amount of Rs. 450/- for furniture and fixtures. This was meant to be utilised by the employees of the Company which is incorporated under the Indian Companies Act with its registered office at Nariman Point, Bombay. It may be observed at this juncture itself that the evidence indicates in no unmistakable terms that this flat was being utilised by the employees, though there was no term of employment for providing residential quarters and further most of the time the flat was occupied by one employee alone without his family members residing therein. Further, the Company also has another spacious flat located in Breach Candy area which has not less than three bedrooms with attached bath and some portion thereof is being utilised as transit residence for the officers while the remainder is for the regular residence of some other officers. Therein also it appears that the officers have been staying all alone. It is further worth nothing at this juncture that the tenure was fixed for three years as the plaintiff had expectations of getting married soon and an equal expectation to come back from the States so that she could have shelter for residence in this city as she would be settling down in Bombay. The simple significant feature which is quite eloquent, is to the effect that this expectation was not merely her wishful thinking but did materialise and equally synchronised, as she did come back from the United States in August 1973, when the dire necessity to get the flat confronted her. In between, for a couple of years from 1956 to 1968, she had been to the States for her studies, she got married in the year 1970, and joined her husband in the United States where the couple stayed till August, 1973
4. There were some developments during her absence. The plaintiff's mother and brother purchased a flat 'Sonmarg' located at Napean Sea Road, Bombay, and they shifted from Anand Bhavan to this flat and it is clear that Anand Bhavan was occupied only by the aunt since one uncle is reported to have died while the other has acquired another premises. But nonetheless the fact remains that nobody from the plaintiff's family continued occupation in Anand Bhavan. On her return, in September 1973, the plaintiff resided with her mother in Sonmarg flat and she was joined by her husband who returned from the States in July 1974. It does appear that from July 1974, to the end of 1976, the couple had to stay at Baroda where the plaintiff's husband had his consultancy job as the family hailed from Baroda. However, the assignment of the plaintiff's husband was over and he had active business in Bombay associated with the activities of tourism. The plaintiff's father-in-law had the family flat at Worli which was tenanted . This flat came to be disposed of and thereafter the family constructed house at Baroda where the other members of the family were staying. It is also relevant to note that the worli flat was sold to no other than the tenant who was residing therein.
5. Facing the difficulty of the accommodation of her own, the plaintiff issued a notice to the defendant for possession of the suit premises on November 18 1976, which was replied to on December 3, 1976, refusing the allegations. The plaintiff was ultimately obliged to file a suit in the Small Causes Court in January 1977, claiming the relief for possession on the ground of personal and bona fide requirement and also for monetary relief regarding the rental arrears.
6. The plaintiff and her husband both had higher education and the plaintiff claims to be versatile in several fields including that she has a sense for artistry as dancing in her hobby and she claims to have given public performances though not for monetary consideration. Her two sisters, Sonal and Devyani, are also well-placed in life. Sonal purchased a flat of her own known as Bhaveshwar Darshan situated on Altamount Road, Bombay. After her marriage, Sonal shifted to the independent flat of her husband located at Little Gibbs Road sometime in 1978. Her younger sister Devyani, also well placed after marriage shifted to her husband's independent flat. It is claimed that the couple stayed in the mother's flat at Sonmarg hardly for few months and then were under the permissive user in Sonal's flat Bhaveshwar Darshan. This was under a stipulation that in view of the pendency of the suit the plaintiff has no alternate accommodation and she was thus accommodated there only on temporary basis awaiting the outcome of the suit. This to some extent will complete the family background of the plaintiff as also regarding the various flats with which the family was associated.
7. As regards the Company, it is already stated that they are in possession of two flats one being the suit flat which consists of two bedrooms, a drawing room and kitchen, while the other flat at Beach Candy consists of three bedrooms, hall and a kitchen with attached bath to each bedroom. The said flat is used by the officers, though one at a time, all of whom have been staying all alone while the Breach Candy flat is used for composite purposes, partly as visiting officer's transit residence and partly for the employees of the Company, and it is in evidence that one Shri Sen is the only person occupying the said flat since August, 1980.
8. The defendant Company resisted the suit on all grounds. Tenancy rights were claimed though the agreement was styled as leave and licence agreement and in the alternative the Company claimed protection under section 15-A of the Rent Act as being deemed tenant. The claim of reasonable and bona fide requirement of the plaintiff has been disputed and the plea of comparative hardship is also pressed into service. The Company had filed an application for fixation of standard rent where interim rent was fixed at Rs. 1100/- per month and the arrears are deposited in the Court.
9. The learned trial Judge, on the assessment of the evidence, held that the requirement of the plaintiff as reasonable and bona fide and that the issue of comparative hardship tilted in favour of the plaintiff. In keeping with these findings the suit for possession was decreed.
10. The defendant Company carried Civil Appeal No. 36 of 1981 before the Appellate Bench of the Court of Small Causes at Bombay where they met with no success when the validity of the decree was upheld. It is this judgment and decree recorded on September 29,1982 that is being placed under challenge in this petition under Article 227 of the Constitution of India.
11. Shri M.V. Paranjape, the learned Counsel for the petitioner Company, assails the finding of both the courts below on various grounds. According to the learned Counsel initially the plaintiff had no reason to abandon the family house, Anand Bhavan where she does have her own share, however limited it may be, and thus she can easily reside there, whereas it is being occupied only by one or two persons. It is then claimed that the duration incorporated in the leave and licence agreement was really illusory since the plaintiff had no desire at any time to occupy the suit premises since her only motivation was to derive monetary gain through the amount of compensation. The learned Counsel further submits that the plaintiff and her family are happily residing in Sonmarg though the said flat stands in the name of Sonal who would not make her sister to go on the streets and as such the plaintiff's requirement is satisfied. The plaintiff's claim that she had been to the States on couple of occasions has also been criticised. Similarly, on the basis of availability of different flats including that of her mother, it is contended that no hardship would be caused to the plaintiff if a decree for eviction is refused. The plaintiff was also subjected to not a very mild criticism when her status of affluence and sophistication was very much relied upon by the lower Appellate Court in her favour and which according to the learned Counsel, are thoroughly irrelevant features.
12. Shri Cooper, the learned Counsel for the respondent plaintiff, in the first instance contends that there is a concurrent finding of fact resting entirely on the process of assessment of the evidence by the two courts below where the plaintiff's requirement is held established and as this Court would not be justified to interfere under Article 227 of the Constitution of India. On merits the learned Counsel vigorously submitted that the so-called availability of the flats Sonmarg and Bhaveshwar Darshan cannot be a ground for snatching the permissibility of the plaintiff getting the suit flat as, according to the learned Counsel. Sonmarg flat can hardly be a permanent residence for the plaintiff while Bhaveshwar Darshan has no concern with the plaintiff especially when the brother, who has now settled in life, has to come to his own family along with his mother and the plaintiff cannot be compelled to stay with her husband in the mother's flat. As regards the family house Anand Bhawan, the learned Counsel submits that even on a rough calculation the plaintiff's share would be at the most 1/45th on which basis on a further logical calculation not even one room would be available to the plaintiff and this apart, according to the learned Counsel the plaintiff who has made her exit from the family by virtue of her marriage cannot have a right of residence in the family house. He also submitted that Company is merely sitting tight and pretty on an assumed right when the flat really is not required by the officers and they have already in their occupation another spacious flat at Breach Candy to satisfy their needs.
13. I have already indicated with the necessary details the historical aspect about the family background, various developments and the acquisition of certain flats by both the parties. A repetition, therefore, is unnecessary.
14. The petitioner stumbles at the threshold against a difficult situation inasmuch as there is a concurrent finding of fact of both the courts below which have arrived at exclusively on the process of appreciation of evidence under which the requirement of the plaintiff under section 13(1)(g) of the Rent Act has been established to be reasonable and bona fide and further the issue under section 13(2) vis-a-vis comparative hardship has also been held, on evidence, in favour of the plaintiff. It cannot be underestimated that the jurisdiction under Article 227 of the Constitution of India has its obvious limitations when the process of re-assessment of evidence is not available and it is well settled that concurrent finding should not be lightly upset. It is further settled that interference is not permissible in such a situation of concurrent finding even in a case where either some other view is possible or some deficiencies have remained in the process of assessment of evidence or in a extreme case even if there is some illegality. This is more so if impugned order in its ultimate analysis tends to do justice to the cause and the parties, then this Court is not bound to interfere, as enunciated in India Pipe Fitting Co. v. Fakruddin, : 1SCR797 . It is further held in that decision that when there is reasonable factual appreciation of evidence when both the courts came to a conclusion which cannot be styled as perverse or even against the weight of evidence, then the interference is wholly unjustified. It is unnecessary to multiply the ratio in that case though one can refer with advantage to the ratio in Paygonda v. Jingonda, : AIR1968Bom198 , wherein it was observed that the Court may not interfere with the impugned order under Article 227 of the Constitution which in effect tends to do justice to the parties. There is also no error apparent on the face of the record. The reading of the two judgments of the courts below hardly carves out any ground to justify interference, since both the courts below have assessed the evidence in a proper manner and have considered the rival controversies in proper perspective and both have arrived at an equally proper conclusion.
15. This apart, in order to ward off any scope or apprehension for miscarriage of justice, I have been taken through the relevant portions of the evidence and I have re-examined the rival contentions and even then I am unable to trace even a single reason to disagree with the finding of the courts below. Since I am endorsing all the findings, it may not be necessary to go into the details of all the finer shades. It would, therefore be sufficient if a cursory reference is made to some of the relevant features.
16. The acquisition of various flats by the different member of the family of thee plaintiff can hardly create any hurdle in upholding the claim of the plaintiff vis-a-vis the suit premises. As stated, the suit premises were purchased by the plaintiff in February 1963, over which there is no dispute. At that time it was not necessary for the plaintiff to occupy the suit premises since she was happily residing with her parents and sister in the family house Anand Bhavan . Her father died in 1965. She was in the United Stated for studies from 1966 to 1968. The leave and licence agreement was executed on 6th of July, 1970, with the duration of three years. It was an out and out leave and licences agreements at that time, though by reason of the amendment and introduction of section 15-A to the Rent Act, as the licence was subsisting on 1st of February, 1973, an advantage was accrued in favour of the defendant Company when it got the protection and became deemed tenant. It would, therefore, be obvious that initially there was absolutely no intention with either of the parties to create any tenancy rights. The plaintiff joined her life partner in the States sometime in February 1971, and returned to Bombay in August 1973. Now, it is very important to note, as stated earlier, that the plaintiff has positively asserted that she had reasonable expectation to come back within three years so that she can have the flat for her own occupation and that is how it prompted her to create the agreement only for a period of three years. This actually materialised when the plaintiff come back within three years. This was not a coincidence but would be an assurance that the expectation entertained by the plaintiff was fully justified and secondly she had not the slightest desire to abandon this flat, but was very much conscious to the necessity of her being required to get this flat on her return. This would, therefore, clearly answer the contention of Shri Paranjape, the learned Counsel, that the intention of the plaintiff was otherwise and her claim of expectation to come back within three years was illusory. As stated, the factum of her having returned within three years is established and on that basis the plaintiff's claim and assertion become extremely probable and acceptable.
17. A serious grievance was made by Shri Paranjape when he contained that the plaintiff who belonged to an affluent family entered into an equally affluent family her marriage and she had several flats at her command which would destroy her requirement. In that category, reference to all those flats have been made by the learned Counsel. The details of those flats are indicated at the outset. It is in evidence that the husband, after his return from the United States, shifted to Baroda from where he originally hails and he stayed with his parents as he had a consultancy job at Baroda. It is apparent that during all this period the plaintiff had no requirement as such of any premises for her occupation. Now, this is a very eloquent circumstance inasmuch as the couple was in Baroda from July 1974 to 1976, and it is thereafter that they shifted to Bombay as the husband had a permanent occupation in Bombay associated with tourism activities. Issuance of notice in November 1976, at that point of time very much fits in with all these assertions of the plaintiff of returning from Baroda and setting down in Bombay. Significantly till that time no notice was issued and it really could not have been issued. This also clearly answers the criticism of Shri Paranjape that the plaintiff was lethargic in making the demand whereas Shri Cooper rightly submits that such a demand, even if made, would not have justified. This, on the contrary, affords a very solemn assurance to the truthfulness and the bona fides of the claim of the plaintiff. Shri Paranjape further contended that the plaintiff admits in her evidence that her younger daughter was then in the custody of the plaintiff's mother while the plaintiff and her husband were at Baroda and the daughter was schooling at Bombay. This obviously could not have been so, as rightly contended by Shri Cooper, as by then the daughter was hardly one year old. No further comments on this are necessary.
18. Shri Paranjape made a very rigorous attack on the credibility of the plaintiff's claim based on yet another aspect. According to him, Sonal purchased the flat Bhaveshwar Darshan in January 1977, and the plaintiff has been residing in this flat till this day whereas Sonal, on getting, married, is residing happily in a spacious flat belonging to her husband on Little Gibbs Road and as such Sonal would not require this flat. There is an apparent fallacy in this contention. This flat admittedly belongs to Sonal and apparently the plaintiff has no concern with the same and, in any event, the plaintiff cannot stake any claim as of right over this flat. Further, it is not merely a matter of inference when the plaintiff has made a positive assertion in her evidence that she had requested Sonal to allow her to occupy the flat till she gets possession of the suit flat as the decision was awaited. Occupation of this flat was admittedly after the filing of the suit. The plaintiff also asserted the Sonal agreed to this only temporary basis till the decision of the suit. This act of the sister out of love and affection for the plaintiff cannot be construed to mean that the plaintiff would have the occupation of this flat all throughout her life or that Sonal had abandoned her claim over the same. There is hardly any cross-examination of the plaintiff in that behalf. This assertion, therefore, which fits into the circumstances, can be safely accepted. Sonal must have been prompted by an obvious desire to see that her sister is not thrown on the streets since she was in a predicament during the pendency of the suit and Sonal also expected that the plaintiff would get her flat under the decision of the Court. This criticism, therefore, can hardly be held to be valid to negative the plaintiff's assertion.
19. In this context it will not be irrelevant to refer to another circumstance, though incidentally and not as primary. It is in evidence that the plaintiff's family witnessed a tragedy and mishap in this very building Bhaveshwar Darshan where her elder daughter accidentally fell out of the window which proved to be fatal and which created a terrific shock for the parents. The plaintiff has asserted that she could not any more occupy the said flat on account of this incident. This aspect is not seriously challenged by the defendant. It is, therefore, apparent that the plaintiff and her husband who had witnessed such a tragedy when their daughter lost her life in such an unfortunate situation must have been experiencing the haunted memories of their child in that house and it would be almost inhuman to negative the plaintiff's assertion that she cannot continue to stay in that building.
20. As regards the flat Sonmarg, more or less similar criticism was levelled by the learned Counsel for the petitioner. This flat belongs to the mother and brother. Admittedly the plaintiff and her husband stayed in this flat on their return from Baroda hardly for few months and the plaintiff asserted that it was very embarrassing for her, especially for her husband, to stay in her mother's flat. This embossment is not artificially created since it is implicit in the situation that normally a person may not like even the idea of staying in the in-law's house. This is a familiar feature of a person having a sense of decency and culture and the plaintiff and her husband obviously fall in that category. The very fact that the couple stayed hardly for few months and immediately shifted to Bhaveshwar Darshan is a further assurance to the plaintiff's claim that they could not stay in the mother's flat. It is also in evidence that though the brother has gone abroad for higher education, he is likely to come back any time and a statement is made at the Bar that he has now returned after completing higher education and has got married. Thus the said flat has to accommodate the brother and his family as also the mother. Area-wise also, therefore, it cannot accommodate all these families including that of the plaintiff.
21. Much was canvassed by Shri Paranjape on the basis of the family house Anand Bhavan. It is true that the plaintiff's assertion that there has been either a formal partition or at least some family arrangement is not supported by any document as such. However, on every aspect of a household arrangement there may not be any documentary evidence as such. Under the arrangement the plaintiff claims that the family house obviously came to be allotted to the three branches, that is her father and two uncles, since it is an ancestral property. The lower Appellate Court, on the basis of certain calculation, felt that the plaintiff would get at the most 1/5th of the 1/3rd share of her father on the basis of there being five claimants to inherit the 1/3rd share of the plaintiff's father. As against this Shri Cooper, the learned Counsel, submits that on the proper assessment the plaintiff would be entitled at the most to 1/45th share. In either of the cases the share can obviously be styled as a marginal one vis-a-vis the area to be allotted in terms of that share and the learned Counsel further submits that on that basis not even room area-wise would be available to the plaintiff. The learned Counsel for the petitioner then submits that the premises are being occupied by the plaintiff's aunt since the other two uncles do not reside there, though it is claimed that one of the uncles is dead. This, as rightly contended by Shri Cooper, would hardly make any difference once the entitlement as of right of the plaintiff is taken into account. It is also further submitted by Shri Cooper, with some justification, that the plaintiff, after her marriage, cannot have a right of residence in the family house. Both these aspects blended together justify the submission of Shri Cooper that the existence of this flat, though ostensibly spacious enough, can hardly create any impediment in upholding the requirement of the plaintiff vis-a-vis the suit flat. It would not be out of place to observe in this connection that even the plaintiff's mother and brother have shifted from this flat to Sonmarg and as such there ought have been some valid reason which prompted their action to abandon the family house in which they had their own share. Shri Paranjape, the learned Counsel, made an unsuccessful endeavour to submit that the mother may have liked to reside in a more sophisticated locality which prompted her to leave the flat at Anand Bhavan. There is hardly any substance in this contention as Anand Bhavan is located in an equally sophisticated area and it is too much to hold that an old lady had such a frame of mind which prompted her to shift Sonmarg.
22. A faint attempt was made by Shri Paranjape to submit that the plaintiff's husband has another flat situated at Little Gibbs Road. However, it is a clear misreading of the evidence since reference to that flat is not pertaining to the plaintiff's husband but it pertains to the flat owned by Sonal and her husband. This ultimately is conceded by the learned Counsel and, therefore, need not detain us.
23. On the basis of these features, Shri Cooper, the learned Counsel, posed a query and rightly and squarely answered the same in favour of the plaintiff. According to him, all these flats are thoroughly irrelevant to resolve the controversy as the plaintiff and her husband cannot by any yardstick stake their claim over any of these flats as of right. Shri Paranjape, the learned Counsel, endeavoured to submit that the concept of ownership in such a controversy really is not that germane. Even assuming that it is so, still the submission of Shri Cooper is fully justified under the circumstances. The plaintiff cannot be made to be tossed from the household of one relation to another and however thick the bond of love and affection may be, the plaintiff cannot raise her claim as of right for any of these flats. Her conduct in inducting the company only for a temporary period on the eve of her departure to the States fits in with the circumstances. Her expectation to come back within three years equally fits in with the duration incorporated in the agreement. The factum of her return within three years is again a pointer in her favour. Her conduct is not making any false claim over the suit flat even during her stay at Baroda again is a pointer in favour of her bona fides. Her further conduct in giving notice to the company for eviction immediately on her return from Baroda is equally eloquent. There is hardly any delay since, as stated earlier, during her stay at Baroda she could not have laid any ostensible claim over the suit premises under section 13(1)(g) of the Rent Act.
24. As regards the disposal of the family flat at Worli by the plaintiff's husband, it is in evidence that it belonged to her father-in-law and it was disposed of by him essentially as he constructed a family house at Baroda out of the sale-proceeds. There is no serious cross-examination in that behalf. Thereafter the family members started residing in the newly constructed building at Baroda. It is significant to note that this Worli flat was occupied by a tenant and apparently it was very difficult to get possession and consequently the sale was in favour of the same tenant who was in occupation. The complexion, therefore, is obviously changed and cannot be against the plaintiff. It is also clear that this sale was at a time when the plaintiff had not decided to settle down in Bombay but had a job in Baroda and this yet another ground in favour of the plaintiff and her husband to wipe out the allegations about any mala fides when the said flat was sold as at that time its existence was not necessary for the plaintiff.
25. It is true that the lower Appellate Court has rather unduly magnified some of the features such as the status, education and qualification of the plaintiff and her husband as also about the process of computation of the plaintiff's share in the family house. However, that hardly creates any efficiency as such inasmuch as the core remains sound and intact.
26. Under the circumstances, the plaintiff's requirement of the suit premises has been properly held to be reasonable and bona fide. In Rustomji Dinshaw v. Dosibai Rustomji A.I.R. 1921 Bom 34, it was observed that the landlord was not bound to accept such precarious existence and the fact that he had such precarious accommodation did not mean that he could not require his own house for his own occupation. In Basantlal v. P.C. Chakaraborty, : AIR1950Cal249 , it was observed that mere wish or convenience or whim or fancy of the landlord will not be enough to establish his requirement of the premises. The Court further observed that however the statute does not say that it must be an absolute need or absolute requirement in the sense that the landlord will not have any accommodation of any description and that he must actually be in the streets before he can demand his own house for occupation. Reliance was rightly placed on behalf of the plaintiff in the ratio in Jayantilal v. B.K. Shani A.I.R. 1952 Sau 86, wherein it was observed as follows :--
'As a result of a partition among the brothers, 'J', one of the brothers, had to shift from the house which he was occupying. He, therefore, purchased a house and brought a suit for eviction of the tenants occupying that house. 'J' was living, by leave and licence, in his brother's house where his position was precarious as, being a mere licensee, he was liable to be ejected at any moment without any notice and could not claim the protection of the Rent Act in defending his present occupation :
Held, that 'J' did require the premises reasonably and 'bona fides' for his use and occupation.'
In Kashi Rout v. Mohammed Saleh, : AIR1972Ori245 , the requirement of the landlord was considered in the context of the insecurity of other accommodation available to the landlord such as being rented house or being required to shift. It is unnecessary to multiply the ratios since the undercurrent is common to the effect that though the plaintiff in the instant case is not actually on the streets, may be due to the helping hand of her sister, still her occupation in the said flat can obviously be styled as 'precarious' and 'insecure' or 'gratuitous' having an obvious uncertainty and equal absence of permanency. If under these circumstances she stakes her claim over the suit premises, then her requirement obviously travels much beyond her mere wish and transforms into a necessity as being genuine and bona fide. The plaintiff thus has fully established her case under section 13(1)(g) of the Rent Act.
27. This really speaking equally answers the other issue under section 13(2) of the comparative hardship. As stated, the plaintiff has absolutely no other alternate accommodation where she can accommodate herself as of right. It is in evidence that inspite of the so-called affluence it is difficult for the plaintiff to invest any more amount for the purchase of a new flat under the prevailing structure of prices, whereas this would be in contrast with the other party being the company having large funds at their disposal. A further discussion about hardship being caused to the plaintiff really is not necessary as it is very much covered by the discussion on the main issue. Anyway the facts established make it very clear that greater hardship would caused to the plaintiff if a decree for eviction is refused. It is the right moment to consider the decision of the company in that behalf. The company got into the premises in 1970, and that too for a period of three years exclusively under a leave and licence agreement. It was sheerly through fortune that it could get the status of a deemed tenant by reason of the provisions of section 15-A of the Rent Act as the licence was subsisting on 1st of February, 1973. It is in evidence that there is no term of employment as such that an officer gets accommodation by virtue of the employment. This was, therefore an additional facility de hors of the employment. It is in evidence further that this flat was occupied by some officers and significantly every officer used to stay all alone without his family. From September 1978, to January 1979, it was lying vacant, when the earlier incumbent Shri Agarwal had resigned. The present incumbent Shri Parmar also stays alone. It is also in evidence that even the food is not prepared and the kitchen equipment was not arranged. This would indicate how the flat was being utilised hardly by one person at a time when the flat is quite spacious to accommodate a family and thus one person got preference while the family of the original owner was kept outside the doors. It is also significantly relevant, as reflected through the electricity consumption bills, that the flat was not continuously used even though it was claimed to have been occupied since on many occasions the consumption was either nil or marginal. There is no substance in the contention of Shri Paranjape that other bills might be with the occupiers. This is contrast with the consumption of electricity in the Breach Candy flat, admittedly in occupation of the company, which was constantly used. The said flat is a three bedroom flat with attached bath in each bedroom. Part of it is used as a transit for the visiting officers which cannot be a permanent feature while parties being utilised for the officer residing therein and it is in evidence that at present Shri Sen all alone resides. This would, therefore, mean the Company has adequate accommodation to house their in this flat of Breach Candy without causing the slightest inconvenience to any of the officers. Their need is thus fully satisfied. Issue on comparative hardship, therefore, will have to be decided against the company on the ground that it a decree for eviction is passed no hardship would be caused to the company.
28. In the analysis it can be held with these observations that the plaintiff's family is in dire requirement in a bona fide manner of the suit premises. It is not her fanciful claim nor is it merely a desire. The company is enjoying the advantage of the situation which has providentially bestowed on it several benefits which were not even in their contemplation. They were not tenanted premises as such but were obtained only for a temporary period during the absence of the plaintiff when they got the benefit by virtue of the amendment to the Rent Act. Even then they are just sitting tight on the situation when such a huge flat has been used hardly by one person at a time and that too not continuously and further more such, an officer could not get the said flat as an incident of the employment. The Breach Candy flat is very spacious and can adequately meet the needs of the company where also only one officer has been staying. It is impossible to encourage such an action of the defendant company at the cost of jeopardising the interest of the plaintiff when the children are to be educated and the plaintiff's family require a decent shelter for their residence. The equity, therefore, also weights heavily against the Company and the principle of beneficial legislation like the Rent Act cannot be extended that far. Under the facts and circumstances, the defendant company have not even a semblance of any right in their favour to be in occupation of the suit premises. On a fair assessment of all the aspects in proper perspective, the decree in question is more than fully justified on merits.
29. In the result, the rule is discharged. There would, however, be no order as to costs.
30. At this stage Shri Tipnis, the learned Counsel for the petitioner, prays that the execution of the decree be stayed for reasonable period. Heard Shri Cooper, the learned Counsel for the other side. Execution of the decree be stayed for four weeks.